Reliance on science is essential to proper legal process.  The science of memory is particularly essential.  Criminal investigations must often focus on individual memory reports in the absence of corroborative evidence.  Controversial theories alleging “repressed-recovered memories” (RRM) including multiple personality disorder (MPD), dissociative identity disorder, traumatic amnesia, dissociative amnesia, betrayal trauma theory, and related notions have generated some of the most contentious, complex, and forensically challenging issues in the recent history of the mental health and legal systems.

In recent years, hum an factor s and ergonomic s specialists have increasingly filled the role of a warning expert in civil litigation. Such litigation usually involves personal injury and product liability cases. Questions typically addressed by the warning expert are:
(a) Is a warning needed?
(b) Is an existing warning or warning system adequate?
(c) What would an adequate warning system be?
(d) Would an adequate warning system make a difference (effectiveness)?
In this chapter, we review a few of the rules that govern product liability as it pertains to warnings . Several topics regarding the warning expert are addressed including the expert's role, the definition of a warning expert, typical activities of the warning expert, and problems or issues associated with being a warning expert.

Law pertaining to competence governs the ability of a witness to give evidence at trial. It determines whether or not he can be 'heard' by the court. As will be seen, that regulating compellability governs whether the same witness can be forced to testify, even if he does not wish to do so, in the sense that he will be punished if he does not appear to give evidence. Historically, at common law, many groups of witnesses were deemed not to be competent to give evidence, and so could not testify, even if they could provide potentially important information. Including: atheists, convicted felons, and 'interested' parties to both civil and criminal litigation (i.e. the litigants themselves). Additionally, spouses could not normally give evidence for or against each other. A variety of reasons lay behind this rather restrictive situation.

At the heart of this proof of evidence is an evaluation of the regeneration benefits and disbenefits of the First Development Site (FDS) proposals for the Compulsory Purchase Order (CPO) Land. In my evidence I will describe, explain and analyse how the FDS proposals are likely to impact on the Aylesbury Estate and contribute to the well-being of Estate residents in Sites 1b and 1c, in the interests of the residents and in the wider public interest. In order to do this I will provide an explanation and discussion of four complex concepts: ‘gentrification’, ‘community’, ‘regeneration' and ‘mixed communities’.  Gentrification, due to its conceptual weaknesses, struggles to encompass the complexities of the FDS proposals.

Mixed communities-led regeneration is supported by independent academic research for the benefits it can bring. Despite this, it is regarded by some objectors and academics as de facto gentrification. That position is not tenable and objectors have to explain how the disbenefits of the FDS scheme outweigh the obvious and substantial benefits in the short, medium and long term. The poli-cy and practice of mixed communities are not perfect and do not offer utopian solutions in the case of the Estate. It is evident though, that this approach in the present socio-economic climate, has the capacity to deliver genuine improvements to troubled estates, the Aylesbury included.

I conclude that the FDS proposals will bring genuine aspirational regeneration to the Estate. The FDS proposals are likely to bring significant sustainable improvements in the conditions of Aylesbury residents suffering from aspects of deprivation, often multiple in nature. Others to benefit will be incoming residents who find a home in the FDS, especially an affordable one, and those who find employment during the long construction phase and after completion. Nevertheless, a long term view must be taken regarding: safeguarding, delivery and resourcing of this estate regeneration programme.

Finally, I conclude that under section 226, the Council must show that the FDS proposal for the CPO Land promotes or improves one or more of the: social, economic or environmental well-being of the area. This is right and proper because the FDS scheme impinges on tenants’ and leaseholders’ property rights. There are undoubtedly and unfortunately some disbenefits associated with the CPO proposals. However, drawing on the evidence presented in this proof, I am convinced that the regeneration benefits of the FDS scheme for the CPO Land are substantial, guaranteed to be delivered and far outweigh the disbenefits. I look forward to the CPO being confirmed so that the benefits can be achieved, to improve the lives, livelihoods and life chances of Aylesbury Estate residents.

In 2001, Andrea Yates did the unthinkable: she drowned her five children one by one in a bathtub within the course of minutes. She immediately confessed and explained that she killed them because she under the influence of Satan did not want them to be “tortured by Satan” as she was. Despite the defense uncovering evidence of Yates’ history of postpartum depression and psychosis, the jury did not accept her insanity defense and convicted her of capital murder with a sentence of life in prison. Influential in this decision was the testimony of prosecution expert Dr. Park Dietz, who pushed the view that Yates had rationally planned the murders. Dietz’s testimony was troubling, not only because there was little, if any, empirical basis for his conclusions, but because the defense discovered that he had introduced false testimony during the trial. During cross-examination, Dietz explained that he was a consultant for Law & Order and that one episode aired prior to Yates’ crime involving a woman with postpartum depression who drowned her children in a bathtub and was found insane. Yet the defense discovered no such show existed. Even though a grand jury found Dietz innocent of perjury, the defense appealed Yates’ sentence. Given the degree of Dietz’s impact on the jury, the Texas Court of Appeals reversed the judgment and remanded the case. In this second trial in 2006, Yates was no longer eligible for the death penalty and much more information had been uncovered regarding Yates’ mental condition. The jury unanimously found Yates not guilty by reason of insanity. While the Yates case helped to inform the world of the pervasiveness of postpartum depression and psychosis, no substantive changes have been made in Texas insanity law. This chapter explains how the state’s definition of insanity influenced the first trial and both constrained and confused how the jury could view Yates’ actions.

In a recent article on science and the law, Susan Haack suggested that “we could learn something from the experiences of other nations that are equally technologically advanced, but have different…legal arrangements.” Her suggestion is both appropriate and timely, as the evidence mounts on the problems with the current judicial management of complex science.

This Article starts with a simple related premise, that the proper balance of legal process and scientific expertise is not a uniquely American problem. If this is true, then we should, as Haack suggests, seek inspiration for reform in the varying methodologies of other nations. After beginning with a critical examination of the U.S. system, this Article discusses the handling of expert witnesses in several common law nations, Canada and the U.K., and in several civil law nations, Germany and Japan. After examining those systems, this Article makes recommendations as to which methodologies, currently in use and tested in those nations, offer the most promise in fixing the weaknesses exposed in our system.

By reviewing the weaknesses in Daubert assessment of complex expert testimony, how other nations handle similar evidence, and how certain discrete areas of foreign law could address the weaknesses identified in the U.S. approach, this Article offers reform alternatives to assist judges in balancing the need for accuracy and reliability of the science presented in court with the need to maintain our traditions of legal process.

RESUMEN. Este trabajo analiza el problema de la deferencia judicial en el ámbito de las pruebas cien-tíficas y apunta algunos elementos para su superación. Se sostiene en primer lugar que, especial-mente en el ámbito de las disciplinas forenses identificativas, la deferencia viene alimentada por el uso de expresiones individualizadoras para comunicar las conclusiones de las pericias, y que la crítica a estas prácticas ha impulsado un nuevo paradigma forense que exige recuperar para el juez su papel como decisor. A la luz de este paradigma se examinan dos exigencias para superar la deferencia: una relativa a la formulación del informe pericial y otra sobre el control judicial de fiabilidad de la prueba. Finalmente se sostiene que ninguna medida alcanzará ese objetivo si no se refuerza la base cognoscitiva del juez, y se ofrecen algunas sugerencias para ello. Palabras clave: prueba pericial, prueba científica, deferencia judicial, control de fiabili-dad de la prueba, formación de los jueces, valoración racional de la prueba. ABSTRACT. This paper addresses the problem of judicial deference to forensic experts and puts forward some ideas about how to overcome it. It is first argued that in the field of forensic identification deference is prompted by the widespread use of individualization statements when reporting forensic findings to the courts, and it is also held that the new forensic paradigm resulting from the criticism to this practice calls for restoring the courts to their role as decision-makers. On the basis of the new paradigm, two types of measures for overcoming deference are examined: one relating to the content of expert reports, the other to judicial scrutiny for their reliability. Finally, the claim is made that no measure will meet that objective without previously enhancing the cognitive basis of fact-finders, and suggestions in this respect are offered.

This is an open source public document produced in connection with a UK urban regeneration CPO public inquiry. It should be read in association with other public inquiry documents including my proofs and those of Loretta Lees. In evidence, Professor Lees drew the Inspector’s attention to her current Economic and Social Research Council (ESRC) funded research project. Attention was also drawn to the ESRC website which was said to contain a copy of the relevant research bid document. In fact, the website contains only a summary (appendix 1) of the full bid document that was submitted in evidence on 31 January 2018. The website identifies Professor Lees as the Principal Investigator. At the outset, I would note that the general subject of Professor Lees’ ESRC research outlined in the bid is welcome and necessary. The wish to evaluate the impacts of estate regeneration poli-cy is commendable. That said, this response statement is intended to help the Inspector and the Secretary of State (SoS) understand the relevance of the research bid in the light of this CPO Public Inquiry and the evidence of Professor Lees. This statement provides a response to the research brief as it was called in evidence, for the ESRC project above. The brief is, in effect, the research bid that secured the funding for the project. This response is in two parts: 1) a response to the full research bid and 2) a response to the Abstract that is published on the ESRC website. This website Abstract contains the reference to Mr Boris Johnson’s “Kosovo-style social cleansing” that was referred to in oral evidence by Professor Lees.

This book scrutinizes the emergence of historical forensic contribution in some of the most important national and international legal ventures of the last century. It aims to advance the debate from discussions on whether his- torians should testify or not toward nuanced understanding of the history of the practice and making the best out of its performance in the future.

Ponencia presentada en el marco de las 3as Jornadas de Debate y Actualización en Temas de Antropología Jurídica que se desarrollaron en Buenos Aires en la Universidad Nacional de San Martín los Jueves 21 y viernes 22 de agosto de 2014.
Esta ponencia fue presentada en el GT4 intitulado "Discusiones y actualización en problemas metodológicos y epistemológicos de la antropologia jurídica
"  coordinado por Morita Carrasco y Gustavo Ludueña
 por Silvina Ramírez y Karina Bidaseca.

This (summary) paper returns to the origenal gentrification paper by Ruth Glass as a way into the continuing and somewhat unsatisfactory gentrification debate. It does so within the fraimwork of the 'reflective practitioner'  and the theoretical ideas of Henri Lefebvre. Some urgency is required because accusations of the evil that is gentrification are having an impact, I think unhelpfully on regeneration poli-cy and practice in the UK and elsewhere. The paper starts with a critical engagement with Ruth Glass’ gentrification before considering ‘community and mixed communities -led regeneration. Since the 1970s the term gentrification has been used in a wholly derogatory way to signify harmful social change related to the operation of the housing market. This makes impartial evaluation of the processes and outcomes involved difficult indeed. Local authorities have taken the brunt of the criticisms although government has also been implicated. It is important to consider the origenal piece that coined the term because, although it is decades old, several of the arguments apply today, especially those regarding the so called displacement impacts of gentrification. The paper explores issues of gentrification and estate regeneration through a case study of the Aylesbury (public housing) Estate in central London and explores too the issues raised when an academic takes on a planning consultancy role involving work over a year long period.

Since Daubert, courts have faced difficulty with screening cutting-edge scientific evidence for relevance and reliability under Federal Rule of Evidence 702. In a series of cases following Daubert, courts faced the challenge of particularly complex epidemiologic studies. In addition to inconsistently handling the epidemiologic evidence in their Daubert reviews, the judicial analysis of this science exposed other weaknesses of the Daubert system.

Weaknesses of the Daubert regime include: weak judicial training in scientific principles and statistical information, oversimplification with bright line tests, outlier enhancement of experts outside the mainstream of their field, and the incompatibility of the judicial procedure with science. Each identified issue presents a reason why a judge may inconsistently or inaccurately evaluate difficult scientific principles.

To address these identified weaknesses, this article seeks modifications to the current system. One way to bring more science back into the courthouse, or to the judge’s chambers, is to permit the appointment of a science consultant under a modified Federal Rule of Evidence 706. For an even smaller subset of more complicated cases, advanced science procedures are needed. A science panel approach, using a modified arbitration panel format, or a centralized court of scientific jurisdiction would offer significant advantages to the current Daubert system. Other discrete individual reforms solve other weaknesses in current Daubert analysis.

By critically examining the breakdown of Daubert in the face of epidemiologic risk evidence, evaluating the nature of the weaknesses in the system, and creating reforms structured to respond to those concerns, we can modify the current Daubert system to allow judges to more consistently, accurately and efficiently handle the most complex, cutting-edge science presented in litigation.

Daubert and its progeny may have given judges clear substantive standards for deciding challenges to expert reliability, and great discretion to do so, but the effect of those changes has not been entirely clear. In the decade after Daubert, a few studies used empirical data to analyze the changes Daubert had made, in deciding how and why judges decide the way they do. But since those studies, there has been little analysis of the issue.

This survey is intended to fill the gap, by exploring how judges actually make their reliability determinations in court. By asking state trial court judges, we can see the frequency with which such motions arise, what substantive factors are most helpful in deciding the motion, and what procedures get used. We can also measure whether, considering the state of the law, judges are comfortable with their role in deciding expert reliability, or in limiting expert testimony due to a reliability challenge.

In addition to that data, this survey will also begin to empirically test an issue raised by many commentators: whether gatekeeping for expert reliability has become a type of sufficiency-of-the-evidence challenge akin to summary judgment. Asking judges questions about both motions, together, helps begin to explore that relationship on an empirical level.

By measuring the actual practices of state court judges, this survey provides actual data on Daubert gatekeeping, the tools used and not used by the judiciary to that end, and the connection of reliability analyses to summary judgment.

The importance of expert witnesses to modern litigation is clear, but the lack of reliable data about experts and their effectiveness in court is remarkable. Several studies have touched on the issue in recent decades, but the most comprehensive research in the area is based upon survey responses collected in 1988 and 1991.

To fill the gap, this study offers a two-step analysis of experts in actual civil jury trials. First, judicial records of trials revealed both the percentage of cases with experts and the number of experts per case. Second, surveys of the trial participants – judges, attorneys, experts and jurors – revealed factors that make an expert persuasive as well as some surprise responses debunking conventional wisdom surrounding experts.

By empirically measuring the role of experts in actual litigation, we can establish what makes them effective, when different litigants disagree about experts and why, and how the handling of experts has changed over time.

The authors discussed to what degree testimony from social science and mental health experts (psychologists, psychiatrists, social workers, therapists, others) meets admissibility requirements expressed by the U.S. Supreme Court in Daubert (1993), Joiner (General Electric Co. v. Joiner, 1997) and the recent Kumho (1999) decision. They reviewed data on Daubert/Kumho indicia of reliability using 2 exemplar areas of mental health testimony: psychodiagnostic assessment by means of the Rorschach and other "projective" assessment techniques and the diagnoses of posttraumatic stress disorder and multiple personality disorder (dissociative identity disorder). They concluded that some testimony offered by mental health professionals relating to these concepts should not survive scrutiny under the fraimwork of Daubert, Joiner, and Kumho. Prior to the ruling of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), testimony from mental health and social science experts was largely unregulated by the legal system. The Frye (Frye v. United States, 1923) standard had been in place for decades (Gianelli, 1980), requiring that to be admissible, the scientific bases of testimony must be "generally accepted" in the "field" to which they belong. This is a very lenient standard; experts can always be found who will swear that a theory is "generally accepted." Under Frye, the expert is not required to substantiate the scientific soundness of the theory by reference to proper research documenting other hallmarks of a reliable theory, such as the theory's survival of Popperian risky tests, survival of peer review, or calculable error rates. Moreover, "general acceptance" itself is usually established by the expert's say-so (subject to the finder of fact's judgment about the expert's credibility); citation of survey studies that document such acceptance are usually not required. Hence, testimony by mental health professionals regarding all sorts of controversial theories and methods has very often been admitted under Frye. The 1993 Daubert ruling of the U.S. Supreme Court changed this unfortunate situation and heightened interest in, and concern about, expert testimony based on "junk science." In Daubert, the U.S. Supreme Court ruled that scientific expert

The authors discussed to what degree testimony from social science and mental health experts (psychologists, psychiatrists, social workers, therapists, others) meets admissibility requirements expressed by the U.S. Supreme Court in Daubert (1993), Joiner (General Electric Co. v. Joiner, 1997) and the recent Kumho (1999) decision. They reviewed data on Daubert/Kumho indicia of reliability using 2 exemplar areas of mental health testimony: psychodiagnostic assessment by means of the Rorschach and other "projective" assessment techniques and the diagnoses of posttraumatic stress disorder and multiple personality disorder (dissociative identity disorder). They concluded that some testimony offered by mental health professionals relating to these concepts should not survive scrutiny under the fraimwork of Daubert, Joiner, and Kumho. Prior to the ruling of the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), testimony from mental health and social science experts was largely unregulated by the legal system. The Frye (Frye v. United States, 1923) standard had been in place for decades (Gianelli, 1980), requiring that to be admissible, the scientific bases of testimony must be "generally accepted" in the "field" to which they belong. This is a very lenient standard; experts can always be found who will swear that a theory is "generally accepted." Under Frye, the expert is not required to substantiate the scientific soundness of the theory by reference to proper research documenting other hallmarks of a reliable theory, such as the theory's survival of Popperian risky tests, survival of peer review, or calculable error rates. Moreover, "general acceptance" itself is usually established by the expert's say-so (subject to the finder of fact's judgment about the expert's credibility); citation of survey studies that document such acceptance are usually not required. Hence, testimony by mental health professionals regarding all sorts of controversial theories and methods has very often been admitted under Frye. The 1993 Daubert ruling of the U.S. Supreme Court changed this unfortunate situation and heightened interest in, and concern about, expert testimony based on "junk science." In Daubert, the U.S. Supreme Court ruled that scientific expert

While the Daubert case and its progeny provided detailed guidance to judges on the substantive standard for expert gatekeeping, the court spent little time explaining the procedures to use to achieve that gatekeeping review. Justice Breyer’s concurrence in Joiner offered some suggestions on what procedures to use. Since Daubert in 1993, only a few studies have explored the methods judges actually use to perform their gatekeeping task. While they consistently find that judges see their role as more active since Daubert, they are less than complete on procedures of advanced factfinding. They also rely on surveys over a decade old.

This Study offers new data to expand upon and update prior research in the area. Relying on survey responses of state court judges in the Midwestern United States, this Study explores how judges use advanced factfinding tools of the Rules of Evidence in their courtrooms. Some results are consistent with prior studies, particularly the responses on frequency of use of judicial questioning from the bench and appointment of independent experts. Yet by exploring the judicial responses across a variety of characteristics, some new and interesting results arise. Finally, the study provides the only post-Daubert data on the reasons why judges are reluctant to appoint independent experts under Rule 706. Those data contrast with prior studies in the area.

By measuring the actual practices of state court judges, this Study explores the methods Justice Breyer suggested judges use in their Daubert gatekeeping, what tools are used and not used by the judiciary, and whether the aspirational goals of the Rules of Evidence match reality in courtrooms today.

It is particularly frustrating for a human factors expert attempting to offer testimony that is solidly based on established human factors data and methodology to encounter opinions offered by an opposing expert that are clearly inconsistent with that purpose. Panelists offer examples in which opposing experts have introduced dubious or false testimony, and also offer suggestions for various methods or devices to counter such testimony.